02/10/2019
The judgement of the Court of Appeal in The Lessees and Management Company of Herons Court v NHBC Building Control Limited and others [2019] EWCA has confirmed that an Approved Inspector pursuant to Part II of the Building Act 1984 when carrying out building control functions does not owe a duty of care under section 1 of the Defective Premises Act 1972 (DPA).
Approved Inspectors and DPA
Approved Inspectors are businesses which work in the private sector as an alternative to Local Authority Building Control. An Approved Inspector is registered with the Construction Industry Council to advise and guide clients about the Building Regulations.
Section 1 of the DPA provides that a person taking on work for, or in connection with, the provision of a dwelling owes a duty to the person acquiring the dwelling (and subsequent purchasers) to see that the work is undertaken in a workmanlike or professional manner, with proper materials so that it is fit for human habitation when complete. The Act applies not only to new dwellings but also extensions and conversions. The DPA does not apply to commercial developments.
The Case
The case concerned a block of flats where the Approved Inspector on completion had certified them as complying with the Building Regulations. The claimants alleged that the flats were defective and did not comply with the Building Regulations and sued the Approved Inspector on the basis that a duty was owed under section 1 of the DPA. The Approved Inspector applied to strike the claim out arguing that no duty was owed under this provision. The judge at first instance found there was not a duty and the claimants appealed.
The claimants argued that taking on work in connection with the dwelling covered building control functions. The Court of Appeal upheld the ruling of the lower court finding that an Approved Inspector:
“….has no statutory power to influence the design or construction of a building in anyway, save to stipulate that it must comply with the law. In certifying, or refusing to certify, plans and works the [Approved Inspector] is not engaged in the positive role of the provision or creation of the relevant building, but performs the essentially negative regulatory role of checking for compliance against prescribed criteria.”
The Court of Appeal noted the House of Lords case of Murphy v Brentwood DC [1991] AC 938. Hamblen LJ said:
“….. the reasoning and a number of the speeches in Murphy mean that it is highly persuasive authority that a local authority does not owe a duty under s1 DPA 1972 in the exercise of its building control functions.”
This case is a significant appellate decision which confirms that local authorities and Approved Inspectors do not owe a duty under section 1 of the DPA when carrying out building control functions.
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